How section 230 helped shape discourse on the internet

Twenty-six hidden words in a 1996 telecommunications overhaul law allowed companies like Facebook, Twitter and Google to become the giants they are today.

A case the US Supreme Court heard on Tuesday, González vs. Googlechallenges this law, namely whether the technology companies are responsible for the material posted on their platforms.

Judges will decide whether the family of an American college student was killed a terrorist attack in Paris it can sue Google, which owns YouTube, over claims that the video platforms’ recommendation algorithm has helped extremists get their message across.

It seemed unlikely they would side with the family, but they indicated that they are wary of Google’s claims that the law grants it and other companies immunity from lawsuits.

A second case heard on Wednesday, Twitter versus Taamneh, also focuses on accountability, albeit on a different basis. That case involves the family members of a man killed in an Istanbul nightclub bombing that the Islamic State has claimed responsibility for.

The family accuses Google, the parent of Twitter, Facebook and YouTube, of contributing to the growth of IS by recommending extremist content through their algorithms. The platforms argue they cannot be sued because they did not knowingly or substantially contribute to the attack.

The results of these cases could reshape the internet as we know it. Section 230 will not be easily dismantled. But if it is, online discourse could be drastically transformed.

WHAT IS SECTION 230?

If a news site falsely labels you a scammer, you can sue the publisher for defamation. But if someone posts it on Facebook, you can’t sue the company just the person who posted it.

This is thanks to Section 230 of the Communications Decency Act of 1996, which states that no provider or user of an interactive computer service should be treated as a publisher or spokesperson for any information provided by another information content provider.

That legal phrase protects companies which can host trillions of posts from being sued into oblivion by anyone who feels offended by something someone else has posted, whether their complaint is legitimate or not.

Politicians on both sides of the aisle have argued, for different reasons, that Twitter, Facebook and other social media platforms have abused that protection and should lose their immunity or at least earn it by meeting the requirements set by the government.

Section 230 also allows social platforms to moderate their services by removing posts that, for example, are obscene or violate the standards of the services, provided they act in good faith.

WHERE DOES SECTION 230 COME FROM?

The history of the measures dates back to the 1950s, when bookstore owners were held liable for the sale of books containing obscenities, which is not protected under the First Amendment. A case eventually made it to the Supreme Court, which held that creating a chilling effect to hold someone accountable for someone else’s content.

That meant plaintiffs had to prove that the bookstore owners knew they were selling obscene books, said Jeff Kosseff, the author of The Twenty-Six Words That Created the Internet, a book about Section 230.

Fast forward a few decades to when the commercial internet was taking off with services like CompuServe and Prodigy. Both offered online forums, but CompuServe chose not to moderate it, while Prodigy, looking for a family-friendly image, did.

CompuServe was sued over this and the case was dropped. Prodigy, however, got into trouble. The judge in their case ruled that they exercised editorial control, so you’re more like a newspaper than a newsstand, Kosseff said.

This did not sit well with politicians, who feared the result would discourage moderation by newly formed Internet companies altogether. AND Section 230 is born.

Today it protects both from liability for user posts and liability for any content moderation claims, Kosseff said.

WHAT IF SECTION 230 GOES OUT?

The main thing we do on the internet is that we talk to each other. It could be email, it could be social media, it could be message board, but we talk to each other. And many of those conversations are enabled by Section 230, which says anyone who lets us talk to each other isn’t responsible for our conversations, said Eric Goldman, a professor at Santa Clara University who specializes in Internet law. The Supreme Court could easily disturb or eliminate that basic proposition and say that the people who allow us to talk to each other are responsible for those conversations. At that point they won’t let us talk to each other anymore.

There are two possible outcomes. Platforms could become more cautious, as Craigslist did following the 2018 passage of a sex trafficking law that carved out an exception to Section 230 for material that promotes or facilitates prostitution. Craigslist quickly removed its personals section, which was not intended to facilitate sex work entirely. But the company didn’t want to take any chances.

If the platforms weren’t immune under the law, they wouldn’t risk the legal liability that could come from harboring Donald Trump’s lies, defamations and threats, said Kate Ruane, a former senior legislative adviser for the American Civil Liberties Union who now works for PEN America.

Another possibility: Facebook, Twitter, YouTube and other platforms could abandon moderation altogether and let the lowest common denominator prevail.

Such unmonitored services could easily end up dominated by trolls, such as 8chan, a site famous for graphic and extremist content.

Any changes to Section 230 are likely to have knock-on effects on online discourse around the world.

The rest of the world is cracking down on the internet even faster than the United States, Goldman said. So we are one step behind the rest of the world in terms of internet censorship. And the question is whether we can hold on alone.